6 NYCRR Parts 200 and 201 Assessment of Public Comments
Comments received from August 1, 2012 through 5:00 P.M., September 27, 2012
1. Comment: We appreciate that NYSDEC is taking the initiative to conduct a comprehensive update to the permitting and registration requirements in 6 NYCRR Part 201. Commenter 4
2. Comment: The updated regulations will be well received by the regulated community. Commenter 4
3. Comment: NRG supports the Department's effort to increase the clarity and efficiency of the air permitting process. Commenter 8
4. Comment: The addition of several exempt and trivial activities, the removal of outdated transition plan requirements and many other minor language changes are all appropriate and necessary. The Alliance agrees that the changes to the cap-by-rule provisions will make them more efficient and easier for facility owners and operators to implement and the proposed revisions to the list of activities that are exempt is appropriate. Commenter 6
Response to Comments 1-4: The Department thanks you for your support.
Upsets, Malfunctions and Start-up/shutdown Activities
5. Comment: "Upset" is undefined in the regulations. This term should be defined or removed. Commenter 5
Response to Comment 5: The existing language in Section 201-1.4 used the terms "malfunction" and "upset" interchangeably and inconsistently. When revising Section 201-1.4, the Department decided to use both terms throughout the text, as they are synonymous in the context of Section 201-1.4. Upon further review, the Department agrees with the commenter that the use of two terms to describe one activity potentially creates additional confusion. In order to eliminate potential confusion between the two terms, references to "upsets" will be removed from Section 201-1.4.
6. Comment: Section 201-1.4, titled "upsets, malfunctions, and start-up/shutdown activities" also includes references to "maintenance" in the text of the provision. It is unclear if the inclusion of maintenance was intentional. As written, Section 201-1.4 excuses 'scheduled equipment maintenance'. Scheduled maintenance should be removed from this provision because excess emissions during a planned event should not be excused. Commenter 5
Response to Comment 6: The inclusion of maintenance in Section 201-1.4 is intentional. There are certain situations where maintenance may result in excess emissions, particularly if it is unplanned. However, this is not the case for scheduled equipment maintenance. In such situations, the facility must maintain the emission rates described in their permit. Accordingly, "maintenance" will remain, but references to scheduled maintenance will be removed from Section 201-1.4.
7. Comment: Subdivision 201-1.4(a) is a new subdivision that states that control technology "shall be applied" during any upsets, malfunctions, maintenance, or start-up/shutdown activities. This is inappropriate because malfunctions include problems with control equipment. There are many situations where best operational practices preclude running control equipment during upsets, malfunctions, maintenance, or start-up/shutdown activities. It is not possible or appropriate to apply all the listed control technologies during all phases of start-ups, shutdowns, malfunctions, upsets, or maintenance. In order to accommodate such situations, we recommend explicitly noting that best operational practices be incorporated into the statement defining what "shall be applied". Commenters 6, 10
Response to Comment 7: While Subdivision 201-1.4(a) is not new; the Department agrees that the requirement to apply control technology during periods of start-up/shutdown, malfunction and maintenance may not always be technically feasible. However, it is still the responsibility of the facility owner and operator to ensure that all necessary and appropriate action is taken to prevent excess emissions during all phases of operation, including during periods of start-up/shutdown, malfunction and maintenance. Subdivision 201-1.4(a) will be revised accordingly.
8. Comment: Subdivision 201-1.4(b) describes requirements to document equipment upsets, malfunctions, maintenance, or start-up/shutdown activities. However, the proposed revisions remove the clause "when they can be expected to result in exceedences of any applicable emission standard". This would lead to onerous and unnecessary recordkeeping and reporting of all maintenance activities, whether or not they could ever lead to any change in air emissions. We recommend retaining that clause, or at a minimum, that the requirements acknowledge that activities that do not result in excess air emissions do not have to be documented or reported. Commenters 6, 10
Response to Comment 8: The Department agrees that records documenting equipment malfunctions, maintenance, and/or start-up/shutdown activities are only necessary when those activities can be expected to result in exceedences of an applicable emission standard. The proposed text of Subdivision 201-1.4(b) will be revised to include the previously deleted clause.
9. Comment: Subdivision 201-1.4(c) removes the clause "In the event...," suggesting that all upsets and malfunctions have to be reported whether or not they would lead to any excess air emissions. In order to limit the reporting burden on facilities and the corresponding review burden on the Department, we recommend either reinstating that clause or adding language acknowledging that activities that do not result in excess air emissions do not have to be documented or reported. Commenters 6, 10
Response to Comment 9: The Department agrees that only malfunctions that contribute to excess air emissions must be documented and reported as described in Subdivision 201-1.4(c). Accordingly, Subdivision 201-1.4(c) will be revised to retain the previously deleted clause.
10. Comment: Subdivision 201-1.4(d) requires owners or operators to estimate maximum ground level concentrations as part of the required reports. The only caveat limiting the situations where this would be required is a "may also require" statement. The proposed revisions deleted the clause "depending on the deviation of the malfunction and the air contaminants emitted". We recommend retaining that clause because the rationale for determining whether estimating the maximum ground level concentration depends entirely upon the magnitude or deviation of the malfunction and the air contaminants emitted. We also note that when facilities are required to produce such estimates of ground level air contaminant concentrations, the Department must provide adequate time for facilities to prepare such estimates. Commenters 6, 10
Response to Comment 10: Subdivision 201-1.4(d) is applied on a case-by-case basis. In the event that a facility owner or operator is required to estimate the maximum ground level concentration of any air contaminants emitted, the amount of time provided to the facility to make such a determination will also be determined on a case-by-case basis. In order to facilitate case-by-case determinations, the proposed 30 day timeframe for the submittal of reports under Subdivision 201-1.4(c) will be removed to eliminate any confusion between Subdivisions 201-1.4(c) and 201-1.4(d).
11. Comment: Excess emissions during start-up and shutdown cannot be excused. Commenter 5
Response to Comment 11: The Department will utilize its authority to determine whether or not to penalize a facility owner or operator for unavoidable emissions resulting from start-up and/or shutdown activities. While the facility owner or operator may not be penalized by the Department in such a case, the violation itself is not excused. The facility owner or operator may be subject to enforcement action and penalties sought by citizens and EPA under the Clean Air Act (Act), and any enforcement action or penalties sought by authorized local agencies. Subdivision 201-1.4(e) has been rewritten to eliminate any confusion.
12. Comment: Section 201-1.5 provides that an emergency constitutes an affirmative defense for any enforcement action. EPA does not believe that the Clean Air Act allows an affirmative defense for State Implementation Plan provisions that derive from federally promulgated performance standards or emission limits. In addition, an affirmative defense may only apply in penalty actions, not to actions for injunctive relief. DEC needs to add these limitations to this provision. Commenter 5
Response to Comment 12: An emergency constitutes an affirmative defense to penalties sought in enforcement actions brought by the Department. This Section is not intended to preclude EPA or citizens from taking enforcement action or seeking penalties as provided under the Act. Section 201-1.5 will be reworded in order to clarify the Department's intent and eliminate any potential confusion.
13. Comment: It is unclear if this provision also includes an affirmative defense for excess emissions from start-up, shutdown, or malfunction activities. Commenter 5
Response to Comment 13: Section 201-1.5 provides for an affirmative defense only when an emergency has occurred. An emergency, as defined in Paragraph 201-2.1(b)(12), does not include periods of start-up, shutdown or malfunction. However, an emergency may cause or contribute to a malfunction. In such a case, it is possible that a facility owner or operator could demonstrate that the malfunction was caused by the emergency and establish the affirmative defense.
Public Access to Recordkeeping
14. Comment: Subdivision 201-1.4(b) requires the facility owner or operator to maintain records, but only to submit a report when the Department requests such report or when required by permit. Subdivision 201-1.4(c) requires the owner or operator to notify the Department as soon as possible that a malfunction or upset occurred, but written reports are only required when requested by the Department. As discussed in the September 20, 1999 guidance, states may not prevent a citizen's ability to enforce applicable requirements. While Subdivision 201-1.10(a) provides public access upon public request, the universe of records available to the public will be limited to the records requested by the state. We are concerned that, as a practical matter, for the state, citizens, and EPA access to reports and records may not be adequate to enforce. Commenter 5
Response to Comment 14: Subdivision 201-1.10(a) allows the Department to request records from facility owners and operators pursuant to requests from the public. Should a citizen request a record that has not been previously submitted, Department staff will request those records from the facility. Facility owners and operators have 60 days to comply with such a request.
15. Comment: Section 201-1.10 states that "if a member of the public submits a request to DEC, the Department will require owners or operators to produce and provide within 60 days any records that they are required to keep under any provision of Part 201". It is not clear why this provision was added to Part 201. The Alliance believes DEC must validate any public requests for records prior to relaying such requests to owners or operators. The DEC should also satisfy such records requests directly if the owner or operator has previously provided the requested information to the Department. As currently proposed, this provision could provide advocacy organizations the opportunity to request reams of information purely to be a nuisance. This requirement would be particularly onerous under the proposed wording of the rule, which does not differentiate between activities that could affect air emissions and other routine maintenance activities that would not. Because the public has the right through the Freedom of Information Act to request these data, the Alliance recommends that this provision be deleted in its entirety. Commenters 6, 10
Response to Comment 15: This is not a new requirement. As stated in Section 201-1.10, the Department will provide a response to public requests for records pursuant to Part 616 and the Freedom of Information Act. However, in certain cases where the Department does not have pertinent records on file (i.e. maintenance, start-up/shutdown records not submitted and/or monitoring data not yet reported) the facility is required to provide that information within 60 days of the Department's request.
Temporary Emission Sources
16. Comment: The new Section 201-1.11 that covers temporary emission sources is a welcome addition. Commenter 6
Response to Comment 16: The Department thanks you for your support.
17. Comment: Proposed Section 201-1.11, Temporary Emission Sources, should not apply to temporary emission sources used at military installations for military training purposes. Commenter 4
Response to Comment 17: The Department agrees with your comment. Activities that meet the definition of "temporary emission source" and satisfy the criteria listed in Section 201-1.11 are already exempted from the requirement to obtain a permit or registration for their operation. This includes most military training exercises and related emission sources used for military training purposes.
18. Comment: New York must ensure that 6 NYCRR 201-1.11 does not provide an exemption to a temporary emission source, as defined by 6 NYCRR 201-2(b)(29), that would otherwise be required to obtain a Title V permit. Commenter 5
Response to Comment 18: Paragraph 201-1.11(a)(2) states that a temporary emission source must be operated in compliance with all applicable requirements. Further, Paragraph 201-1.11(a)(4) specifically excludes emission sources that would exceed, or cause an existing permitted or registered facility to exceed, the major facility thresholds described in Paragraph 201-2.1(b)(21). These paragraphs work together to ensure that an emission source that would otherwise be required to obtain a Title V permit is not inadvertently considered to be temporary. In addition, Subdivision 201-1.11(b) grants the Department the authority to require that an emission source obtain a permit or registration, as appropriate, from the Department if one or more of the listed conditions cannot be met.
19. Comment: A temporary source could potentially operate 90 consecutive days, shut down operation for a day, and resume operation for another 90 consecutive days. Without an annual limit on the number of days of operation, a transient source could effectively operate year-round without requiring a permit or registration. We suggest that New York put an upper limit on the number of days of operation per year to ensure that this provision is not used to exempt certain types of activities taking place at a facility that would otherwise be credited as part of the facility's potential to emit. Commenter 5
Response to Comment 19: The Department agrees with your comment. The language of Paragraph 201-2.1(b)(29) will be revised to state that temporary emission sources can only operate for a single 90 day period.
20. Comment: The definition of "temporary emission source" includes the phrase "transient in nature" which is not otherwise defined in New York's rules or regulations. Commenter 5
Response to Comment 20: The Merriam-Webster dictionary defines transient as "passing through or by a place with only a brief stay1." The Department believes this definition is sufficient for the purposes of Paragraph 201-2.1(b)(29) and Section 201-1.11, and therefore a separate definition in Part 201 is not necessary.
21. Comment: Without further clarification, it is unclear what types of sources would be considered "transient in nature". Commenter 5
Response to Comment 21: An emission source that is considered to be "transient in nature" is a piece of equipment that is brought onto a site to fill a short term need. For example, a facility owner or operator may rent a package boiler for a short period of time in order to provide process steam while their main boiler is shut down for routine maintenance. In this case, the package boiler is only on site at the facility for the duration of the maintenance, and is subsequently removed. It is important to note that emission sources which will remain at a facility indefinitely do not meet the definition of "transient" (see Response to Comment 20), and therefore will not be considered to be temporary under Part 201. Further, if an emission source is permanently constructed at a facility, but only used for short periods of time (i.e. a batch operation), that emission source is neither transient nor temporary and must be included in the facility's permit or registration, as appropriate.
22. Comment: For Title V purposes, 40 CFR 70.6(e) requires a temporary source to have at least one change in location during the term of the permit. This requirement should be added to the definition of "temporary emission source" at 201-2.1(b)(29). Commenter 5
Response to Comment 22: The temporary source described in 40 CFR 70.6(e) is fundamentally different from the temporary source described in Paragraph 201-2.1(b)(29). 40 CFR 70.6(e) describes a single piece of equipment that moves from one facility to another and that is operated by the same person or persons at each location. The owner of that equipment is issued a permit for the operation of the source at multiple different facilities. This is contrary to the permitting method utilized by the Department. The Department issues permits on a facility wide basis, where a facility, as defined in Subdivision 200.1(aa) is "all emission sources located at one or more adjacent or contiguous properties owned or operated by the same person or persons under common control." A temporary emission source is an emission source that is brought to an existing facility. Any necessary permitting actions resulting from its operation would affect the facility as a whole, not just the emission source. Further, a temporary emission source operated pursuant to Section 201-1.11 is located at a single facility for the duration of its operation. By requiring the owner or operator of the facility to change the location of the temporary source during the term of the permit, the Department would be requiring the owner or operator to move the equipment from one location within the facility's fence line to another. This requirement does not prevent or reduce potential emissions from the temporary source, and would serve only to create a burdensome and unnecessary condition for compliance.
23. Comment: The Department should require the owner or operator of a temporary emission source to keep records of the temporary emission source's location, and inform the Department of any changes in that source's location during the operating period. Commenter 5
Response to Comment 23: The Department issues and monitors its air pollution control permits and registrations on a facility wide basis. Therefore, if the owner or operator of a particular permitted facility decides to use a temporary emission source and then change the location of that source within the same facility, those records indicating each movement would provide little benefit to the Department in terms of determining compliance. Should the temporary emission source move from that facility to another facility, the Department would have records of this change via the advance notification provision of Paragraph 201-1.11(a)(1) and the recordkeeping required by Paragraph 201-1.11(a)(3).
24. Comment: The Department should require both the temporary emission source's owner or operator and the owner or operator of the facility where the temporary emission source is located to keep five-year records in order to simplify enforcement and compliance actions. Commenter 5
Response to Comment 24: In many cases, the owner of a temporary emission source is not related to the owner or operator of the facility in any way. The need for equipment on a temporary basis is often filled via equipment rental services and short-term contracts. In this situation, the only record the owner of the equipment may have is the rental agreement signed by the owner or operator of the facility where the temporary emission source is to be operated. Further, it is not the responsibility of the rental company to ensure that the facility is in compliance with all applicable regulations while operating a temporary emission source. Should a compliance issue arise, the Department's first course of action would be to contact the facility operating the source, not the firm that owns it. To require third parties to keep records that the Department would rarely, if ever, use creates an unnecessary burden and duplicative paperwork with little tangible benefit.
25. Comment: The definition of "portable emission source" is being amended to delete "without a deterioration in the effectiveness of any air pollution control equipment" - the Department should retain this language in the revised definition of "portable emission source". Commenter 5
Response to Comment 25: The Department disagrees with your comment. The portability of an emission source has little to do with whether or not it is equipped with functional control equipment. The owner or operator of a portable emission source must ensure that the source is operated in compliance with all applicable regulations, and that any necessary control equipment is in good working order.
26. Comment: How does the term "portable emission source" defined in Paragraph 201-2.1(b)(24) fit into the proposed requirements for temporary emission sources? Clarification is needed to distinguish between a portable emission source and a temporary emission source. Commenter 5
Response to Comment 26: A portable emission source it is not necessarily a temporary emission source. For example, many hot mix asphalt plants are mounted on trailers or skids, and are capable of being moved from one location to another. In this way, the asphalt plant is a portable emission source. However, many such plants are operated at a single location for an extended period of time once they are unpacked. Given that the plant will remain at the facility for an extended period of time, it does not satisfy the definition of a temporary emission source in Paragraph 201-2.1(b)(29), and must be appropriately permitted or registered.
27. Comment: Paragraph 201-1.11(a)(5) states: 'The temporary emission source is not an affected source, or operated at an affected source, as defined in Paragraph 201-2.1(b)(3) of this Part'. As drafted, the definition of "affected source" at 201-2.1(b)(3) is a facility with a Title IV Permit - Acid Rain unit. It should not matter if the temporary emission source is located at an acid rain facility because there is no reason that a Title IV facility temporary source should be treated any different than a non-Title IV facility. If there is a need for a temporary auxiliary boiler, for example for an outage or to prevent freezing, the way this reads we would need to apply and obtain a permit modification. That appears to be an unnecessary burden for the facility and the Department. We request the deletion of Paragraph 201-1.11(a)(5). Commenter 6
Response to Comment 27: 40 CFR 70.6(e) states, in part, that "[n]o affected source shall be permitted as a temporary source." However, 40 CFR 70 is silent on the operation of a temporary source at a facility that is also an affected source. The Department agrees that there are many situations that would require the operation of a temporary emission source at an affected source. The language of Paragraph 201-1.11(a)(5) will be clarified.
28. Comment: A temporary source is sometimes brought into operations to address the shutdown for maintenance or repair of other sources. However, the exact date when the temporary source may start operations may not be known or may be subject to change. A permittee should be able to give notice to the Department of the conditions when the temporary source may commence operations 10 days in advance of the start of actual operations but no later than one day of the start of the actual operations where it is not feasible to provide 10 days notice to the Department. Commenter 9
Response to Comment 28: The Department needs advance notice in order to ensure that proposed temporary emission sources are to be operated as described in Section 201-1.11. While there may certainly be situations where the need for a temporary emission source may not be known 10 days in advance, those situations are vastly outnumbered by planned events.
Phasing Out Certificates to Operate
29. Comment: New York is eliminating the transition plan language in the state facility permit section (201-5) as obsolete. Among the provisions to be deleted is the requirement for "all valid certificates to operate issued by the Department for existing emission sources to remain in effect indefinitely" (6 NYCRR 201-5.1(c)(1)).
Regarding Title V sources, EPA notes that Title V does not create conditions. If the terms of a certificate to operate no longer apply to a Title V source, they may be deleted during the permit issuance or renewal process, which includes public participation. But if terms in the certificate to operate remain applicable to a Title V source, for Title V purposes the Department must be able to point to a basis, independent of the Title V permit, for the underlying "origin of authority" of those terms. Commenter 5
Response to Comment 29: The Department extended all certificates to operate indefinitely during the change over from the old permitting system to the Title V permitting program in 1996. At the time, the Department was facing a large backlog of certificates to operate that needed to be consolidated and converted to the new format. Title V permits for major facilities were made a priority, and all existing certificates to operate at major facilities were consolidated into new Title V permits. Accordingly, the certificates to operate that are still active, and which were extended indefinitely, are for non-major facilities. In addition, while the certificates themselves were surrendered and expired as part of this process, the Department has archived the old permitting data for historical purposes.
Requirement to Commence Construction
30. Comment: We have concerns with the proposed addition of a time limit to commence construction for non-PSD permits proposed in Section 201-1.15 for electric generating facilities because financing for large-scale electric generating projects is often contingent upon having environmental permits in place and the interconnection process for an electrical generating facility can take more than 18 months to complete. Commenters 6, 8
Response to Comment 30: Large scale electric generating units are already required to comply with a similar time limit for the commencement of construction under the Prevention of Significant Deterioration (PSD) program. The same practices employed by facility owners and operators to comply with that process will also be used to demonstrate compliance with Section 201-1.15.
31. Comment: The proposed text of Section 201-1.15 does not implement the stated purpose provided in the Regulatory Impact Statement with respect to the Proposed Rule 6 NYCRR Parts 201 and 200. The Regulatory Impact Statement explains that Section 201-1.15 means that "modifications or revocations will occur in instances where new permit conditions are necessary due to changes in applicable rules and regulations during the time period prior to the commencement of construction." But 6 NYCRR Section 621.13(a)(4) already provides the Department with the authority to modify a permit based upon "a material change in environmental conditions, relevant technology or applicable law or regulations since the issuance of the existing permit." Thus, Section 201-1.15 is not needed to address any changes in applicable rules and regulations. Commenter 8
Response to Comment 31: There are several federal rules that apply to an emission source based on the date of construction or modification of that emission source (e.g. New Source Performance Standards). In a case where an emission source is subject to an applicable regulation with such an applicability date, it is possible for the facility owner or operator to avoid certain requirements (e.g. more stringent emission standards) by obtaining a permit or registration for that source prior to that date and constructing the source after the applicability date has passed. In this scenario, the applicable law or regulation has arguably not undergone a "material change", and therefore the Department may have limited authority under Part 621 to ensure that the appropriate regulatory requirements are included in the facility's permit once it is issued.
32. Comment: Proposed Section 201-1.15 undermines New York's recently enacted Article 10 process for electric generating facilities greater than 25 Megawatts. Commenter 8
Response to Comment 32: The Department disagrees with your comment. Large scale electric generating units (EGU) are already subject to a similar requirement to commence construction under the PSD program. Project sponsors are still able to complete the Article 10 process despite that requirement. For such large scale EGU projects, Section 201-1.15 does not go beyond what is already required.
33. Comment: The proposed rule will place the Department in the dubious position of second guessing an owner's or operator's business judgment. Commenter 8
Response to Comment 33: The Department disagrees with your comment. Section 201-1.15 does not seek to validate or invalidate the business judgment of a facility owner or operator. Section 201-1.15 seeks only to ensure that the Department is issuing permits and registrations for projects that will be constructed in a timely manner.
34. Comment: The Department concluded that "[w]hile there are costs associated with compliance incurred by major facilities, the Department does not anticipate any change in those costs as a result of this rulemaking." The Department should revisit this conclusion and consider the attendant costs, in particular, the cost of increased uncertainty engendered by the potential for permit termination far short of its full term for failing to meet a regulatory construction deadline. Commenter 8
Response to Comment 34: The Department cannot speculate on, or quantify, the potential costs incurred by facility owners or operators that wish to enter into projects that are speculative in nature. Section 201-1.15 seeks only to ensure that the Department is issuing permits and registrations for projects that will be constructed in a timely manner.
Permit Exempt and Trivial Activities
35. Comment: In revising Section 201-3.3, Trivial Activities, NYSDEC proposes to replace the term "off-road vehicles" with the term "non-road vehicles". However, no definition of the term "non-road vehicle" exists in Chapter III, Air Resources, and the proposed revisions to Part 201 do not propose to include a definition for the term. Commenter 4
Response to Comment 35: Subdivision 200.1(aw) defines a non-road engine, in part, as "...an internal combustion engine: (i) in or on a piece of equipment that is self-propelled or serves a dual purpose by both propelling itself and performing another function (such as garden tractors, off-highway mobile cranes and bulldozers); (ii) in or on a piece of equipment that is intended to be propelled while performing its function (such as lawnmowers and string trimmers)...". The term "non-road vehicle" used in Paragraphs 201-3.3(c)(10) and 201-3.3(c)(11) is intended to refer to these two criteria when describing a vehicle that is considered to be trivial for permitting purposes. In order to eliminate the confusion related to this term, instances of the term "non-road vehicle" will be replaced with "vehicles powered by non-road engines".
36. Comment: The trivial source category Mobile Sources and Mobile Source Related under Section 201-3.3, Trivial Activities, should explicitly include "military tactical vehicles and equipment" to make it clear that such vehicles and equipment are considered trivial activities and, thus, exempt from permitting. Commenter 4
Response to Comment 36: The existing language in Paragraphs 201-3.3(c)(10) and 201-3.3(c)(11) provides enough latitude for military tactical vehicles to be considered trivial for permitting purposes. While not specifically listed, the Department believes these types of emission sources are covered by the "...any other type of mobile or portable engine powered vehicles or equipment..." clause in each paragraph.
37. Comment: Equipment used in military training exercises should not be subject to permitting/registration requirements. Commenter 4
Response to Comment 37: The Department recognizes that it may not be appropriate to issue a permit or registration for certain situations resulting from military training exercises. However, the potential exists for an emission source that would otherwise be required to obtain a permit or registration to be operated outside established regulatory requirements as a training exercise. If a training exercise will continue beyond the period allowed for the operation of a temporary emission source, a permit or registration, as appropriate, will be necessary.
38. Comment: Why does Paragraph 201-3.3(c)(95) single out the regulated pollutants carbon dioxide and methane? Commenter 5
Response to Comment 38: The exisiting version of Paragraph 201-3.3(c)(94) listed emissions of several air contaminants as trivial, and therefore exempt from state-level permitting requirements. Carbon dioxide and methane were included in that exemption. Since that time, federal regulation has established reporting requirements for facilities emitting certain levels of carbon dioxide and methane. In order to ensure that the Department can continue properly regulating facilities subject to these regulations, carbon dioxide and methane need to be considered separately.
39. Comment: The word "specifically" in Paragraph 201-3.3(c)(95) could be interpreted very narrowly to exclude from regulation emitting activities that are otherwise intended for regulation. Commenter 5
Response to Comment 39: There are numerous potential sources of carbon dioxide emissions with a wide variety of sizes and emission rates. Sources range in size from residential heating units to large scale electric generating units. In fact, a majority of stationary emission sources that emit carbon dioxide are not regulated at the state or federal level (i.e. residential heating). By including the word "specifically" in Paragraph 201-3.3(c)(95), the Department seeks to limit the scope of facilities that must monitor and report carbon dioxide emissions to those intended for regulation under any current and future applicable requirements. Without this term, the potential exists for emission sources that were never intended to be regulated to be forced to comply with these regulations, resulting in an undue burden on both those facilities and the Department.
40. Comment: The language regarding when to include and when not to include exempt and trivial activities in permits is confusing. In addition to the language already included, for clarity it may also be helpful to also include language regarding how to address exempt and trivial sources in the case where a facility's potential to emit (PTE) exceeds major source thresholds without including emissions from exempt and trivial sources and the PTE from exempt and trivial sources themselves do not exceed major source thresholds or cause the facility to exceed major source thresholds (because the non-exempt/trivial sources already exceed major source thresholds). Commenter 7
Response to Comment 40: Thank you for your comment. The Department agrees that the proposed language in Subdivision 201-3.1(c) is potentially confusing. The facility owner or operator must still include exempt and trivial activities in all potential to emit calculations when determining whether or not the facility is major or subject to 6 NYCRR Part 231. In the case where a facility's potential to emit exceeds a major facility threshold, any exempt activities that contribute to emissions of that contaminant are included in the Title V permit and/or emissions cap. When the potential to emit from exempt and trivial activities causes an otherwise non-major facility to exceed the major facility thresholds, the facility is considered major and the applicable exempt and trivial activities must be included with the non-exempt/trivial emission sources in the Title V permit. Otherwise, for Title V facility permits, exempt activities need only be listed in the permit application. When the potential to emit from all sources, including exempt and trivial activities, is below the major facility thresholds, the facility is considered non-major and the exempt and trivial activities need not be included or listed in any air facility registration or state facility permit. In order to eliminate some of the confusion surrounding this issue, the Department has revised Subdivision 201-3.1(c) to make it clear that should the potential to emit from exempt and trivial activities exceed, or cause the facility to exceed, the major facility thresholds, the facility is no longer exempt from the requirement to obtain a permit, not the exempt and trivial activities themselves. This is in line with Department's current practice of issuing permits for facilities with groups of exempt and trivial activities that have a potential to emit in excess of the major facility thresholds.
41. Comment: 201-3.1(c) states "If the total potential to emit for all exempt and trivial activities at a facility exceeds, or causes the facility to exceed, the major facility threshold, as defined in Subpart 201-2 of this Part, those activities are both subject to the provisions of Subpart 201-6 of this Part and no longer considered exempt or trivial for permitting purposes." If formerly exempt/trivial sources are no longer exempt/trivial, then would they be subject to full Annual Emission Statement reporting? If so, that will be a significant additional regulatory burden on facilities subject to Annual Emission Statement reporting, especially if formerly trivial sources are required to be reported. Commenter 7
Response to Comment 41: Certain emission sources are considered to be exempt or trivial because the Department has determined their operation results in small quantities of air emissions. Should a facility operate several similar exempt and trivial activities, or a combination of permitted emission sources and exempt and trivial activities, it is possible that the total potential to emit from all sources combined may exceed the major facility thresholds described in Paragraph 201-2.1(b)(21). The Department cannot exempt a major facility from the requirement to obtain a Title V permit, regardless of whether or not the emission sources at that facility are otherwise considered to be exempt or trivial. In such situations, the facility owner or operator is required to comply with the same requirements that are applicable to all other major facilities, including annual reporting requirements. In fact, Title V facilities are currently required to report emissions from exempt emission sources every three years (see 6 NYCRR Subdivision 202-2.3(e)).
42. Comment: We respectfully request that the citation for the trivial activity "cold cleaning degreasers that use a solvent with a VOC content of five percent or less by weight" (201-3.3(50)) remain in the regulation based on increased burden to the regulated community if the citation is removed and minimal benefit to the environment by excluding this source from the list of trivial activities. Commenter 7
Response to Comment 42: The trivial activity listed in Paragraph 201-3.3(c)(50) is being removed because it is duplicative. Cold cleaning degreasers using solvents with a VOC content of five percent or less by weight are exempt from permitting requirements as described in Subparagraph 201-3.2(c)(39)(ii).
Term Limits for Air Facility Registrations and Air State Facility Permits
43. Comment: The Department is proposing to change the term for registrations, 6 NYCRR 201-4.1(e), and state facility permits, 6 NYCRR 201-5.3(a), from indefinite to 10 years. The proposed change creates a risk that these permits could expire if not properly renewed. Commenter 5
Response to Comment 43: The proposed revisions include several new provisions establishing the renewal process for state facility permits and registrations that are approaching the end of their term.
Cap by Rule
44. Comment: The recordkeeping requirements in proposed Subdivision 201-4.5(g) would be overly burdensome for some facilities. Commenter 4
Response to Comment 44: The recordkeeping requirements contained in Section 201-4.5 are not new. These requirements apply only to facilities that choose to cap-by-rule, and were previously included under Section 201-7.3.
45. Comment: Several subsections of 201-4.5 have been added requiring facilities to maintain "monthly log of hours of operation" (for example 201-4.5(e)(3)). Owners and operators should only be required to maintain a monthly log of hours of operations where that information is necessary to determine actual emissions. In some cases the actual emissions may be determined based on other factors (such as material throughput) and therefore hours of operation are not necessary. As written, the rule requires the maintenance of a log of hours of operations where that data may serve no practical purpose, so we are requesting that specific data element be removed from the rule. Commenter 7
Response to Comment 45: The recordkeeping requirements contained in Section 201-4.5 are not new. These requirements apply only to facilities that choose to cap-by-rule, and were previously included under Section 201-7.3.
46. Comment: 201-4.5(f)(1) requires facilities to keep records of the type and quantity of fuel combusted at the facility. In addition, (f)(1) states "Facilities capable of using more than one fuel must also demonstrate that the average fuel usage for every 12-month period does not exceed the thresholds listed in Subdivision (a) of this Section." Is the reference to Subdivision (a) (presumably 201-4.5(a)) correct? That reference refers to emission limits, not fuel usage limits. Commenter 7
Response to Comment 46: Paragraph 201-4.5(f)(1) is intended to refer back to Subdivision 201-4.5(a), however the reference to average fuel usage is incorrect. Paragraph 201-4.5(f)(1) will be reworded to correct this issue.
General Language Revisions
47. Comment: The Department should redraft Paragraph 201-6.1(a)(2) to remove the language "specifically required". This language is potentially confusing. Commenter 5
Response to Comment 47: Paragraph 201-6.1(a)(2) has been redrafted to eliminate any confusion.
Persistent, Bioaccumulative, and Toxic Compounds
48. Comment: The DAR-1 AGC/SGC table has an entry for sodium nitrite (CAS 7632-00-0), but there is not a listing for sodium nitrate. The proposed PBT table has an entry for sodium nitrate (CAS 7632-00-0), which is incorrect. The correct CAS for sodium nitrate is 7631-99-4. What was the intent for the proposed PBT listing - should it be sodium nitrate (CAS 7631-99-4) or sodium nitrite (CAS 7632-00-0)? Commenter 2
Response to Comment 48: The intended PBT listing is for sodium nitrite (CAS 7632-00-0). The listed name as sodium nitrate is a typographical error, and will be corrected.
49. Comment: The requirement of subjecting facilities who exceed a significant mass emission rate threshold for a persistent, bioaccumulative, or toxic (PBT) compound to obtaining a state facility permit could create a compliance burden that could be difficult to overcome for smaller facilities that have limited resources. Commenter 4
Response to Comment 49: The Department disagrees with the commenter's assertion that the proposed mass emission thresholds for persistent, bioaccumulative and toxic (PBT) compounds will create an undue compliance burden for small businesses. First, many of the processes operated by small businesses appear on the list of exempt and trivial activities in Subpart 201-3. These listed activities will continue to be exempt or trivial even if a PBT threshold is exceeded. Second, if a facility exceeds one of the listed thresholds, the facility owner or operator would simply be required to apply for a state facility permit. That facility owner or operator will be subject to the same regulations as they would be under a registration, and be required to demonstrate compliance in the same way. Further, aside from the possibility of permit conditions designed to control those emissions, there is little difference in terms of record keeping and compliance between an air facility registration and a state facility permit. The only added requirement is the submission of an annual compliance report.
In addition, the Department provides free and confidential assistance to small businesses through its Small Business Environmental Assistance Program (SBEAP)2. The assistance provided by the SBEAP has proven to be invaluable to small business owners and operators that are unsure of the applicable regulatory requirements and how to comply with them.
50. Comment: Titanium tetrachloride should not be considered to be highly toxic in the environment, and should be regulated in the same manner as its end product, hydrogen chloride. Commenter 3
Response to Comment 50: The commenter is correct that the physical properties of titanium tetrachloride foretell that any uncontrolled emissions of this compound most likely will exist as hydrochloric acid and this would be addressed under the regulatory provisions of 6 NYCRR Part 212 - General Process Emission Sources.
Since 1980, the Department has used its classification system, as described in the DAR-1 guidance document, to determine the toxicity of air contaminants3. Titanium tetrachloride is a federal hazardous air pollutant4 and meets the Department's criteria for high toxicity classification under that system. Specifically, the median lethal dose (LD50) of titanium tetrachloride meets the Department's criteria for a highly toxic compound5. The LD50 of 51 ppm derived in rats and 13 ppm derived in mice6 for this compound is significantly below the threshold of 200 ppm given in DAR-1 for high toxicity classification. As a result, the Department believes that it is appropriate to include titanium tetrachloride on the list of compounds that may require a facility to apply for a state facility permit.
51. Comment: Several of the individual chemicals and one category of chemicals listed on Table 1 (Significant Mass Emission Rates for Persistent, Bioaccumulative and Toxic Compounds) are used as pesticides, herbicides, rodenticides, or insecticides and as such those applications are regulated elsewhere. Given that some of the chemicals listed may be used in agricultural settings, and therefore may trigger registration or permitting of facilities under the revised rules which historically have not been required to be registered or permitted, we are requesting that emissions from pesticides, herbicides, rodenticides or insecticides when applied as restricted by their labels be exempted from emissions calculations to determine if threshold established in Table 1 have been exceeded. Commenter 7
Response to Comment 51: It is not the intent of the Department to regulate the application and use of these compounds with Part 201. Part 201 deals exclusively with stationary sources as defined in 6 NYCRR Subdivision 200.1(cd). As such, the mass emission thresholds listed in the Subpart 201-9 table apply only to stationary emitters of pesticides, herbicides, rodenticides and insecticides. Potential sources include, but are not limited to, chemical manufacturers, processing facilities, and remediation sites.
52. Comment: CAS # 001395-21-7 is listed with the chemical name "Substilsins". Should the chemical name be changed to "Subtilisins"? Commenter 7
Response to Comment 52: The intended PBT listing is for Subtilisins (CAS No. 001395-21-7). The listed name as Substilsins is a typographical error, and will be corrected.
53. Comment: It appears that subtilisins are widely used in a variety of laundry and dishwashing detergents, cosmetics, food processing, etc. Is it practical to have the actual emissions listed in Table 1 set at "0"? Commenter 7
Response to Comment 53: While subtilisins are found in a variety of laundry and dishwashing products, it is not the Department's intention to require permits or registrations for emissions resulting from the use of those products. For example, emissions from laundry equipment, as described in Paragraph 201-3.3(c)(9), are considered to be trivial, and therefore are not subject to the provisions of Subpart 201-9.
State Implementation Plan Revisions
54. Comment: Subdivision 201-1.4(e) grants complete discretion to the Department to excuse any violation for maintenance, start-up/shutdown, malfunctions, or upsets if the Department determines this event is unavoidable. This provision cannot be approved into the State Implementation Plan. Commenter 5
Response to Comment 54: Thank you for your comment. The Department made minor language revisions to this section in response to other comments received (see Responses to Comments 5-11).
55. Comment: Has the DEC considered the impacts these State Implementation Plan revisions, regarding the definition of temporary emission source, will have on your ability to regulate hydrofracking operations, given that the time to drill a well is roughly 30-45 days, and the actual hydrofracking period where additional equipment and trucks (emission sources) are on site is between 3-10 days? Commenter 5
Response to Comment 55: The Department considered the regulatory impacts of the definition of temporary emission sources on every potential emissions source in New York State, including hydrofracking operations, when developing this rulemaking. These sources will continue to be regulated in a manner consistent with the Department's Air Pollution Control Program (6 NYCRR 200 et al.). The Department's proposed regulation of air emissions relating to hydrofracking operations is set forth in the Environmental Impact Statement, draft regulations and other public documents issued by the Department relating to hydrofracking.
Beyond the Scope of This Rulemaking
56. Comment: Can you explain in lay terms what the provisions are, the proposed changes and the impact it will have on the general public? Commenter 1
Response to Comment 56: This is an information request, not a comment on this rulemaking and outside the scope of this rulemaking.
57. Comment: Last sentence of the definition of major stationary source contained in Paragraph 201-2.1 (b)(21):
'Stand alone or common wall residential housing units including compatible commercial activities, which are not regulated by other applicable requirements, where the potential to emit for individual associated combustion or emission sources are below major stationary source, major source, or major facility applicability thresholds (notwithstanding that the sum of these individual combustion or emission sources could exceed major stationary sources, major source, or major facility applicability thresholds) shall not be considered a major stationary source, major source, or major facility'. (Emphasis added.)
The Clean Air Act and federal regulations do not provide for this exemption. Therefore, this exemption should be removed. Also, the phrase "compatible commercial activities" above is vague and, when subsumed within the residential exemption, could result in non-applicability even for non-residential sources that otherwise would have been combined. In the context of GHGs, note that the Tailoring Rule thresholds were set with the recognition that it would be burdensome to permit many multi-family residential buildings, but also with the recognition that large residential complexes over the thresholds would become subject to regulation. Given the Tailoring Rule thresholds, the number of such sources will be relatively small. This regulation would exempt even those large sources contemplated under the Tailoring Rule. Commenter 5
Response to Comment 57: The highlighted text from Part 201 was previously accepted by EPA as part of the Department's rulemaking for 6 NYCRR Part 231 and has not changed as part of this rulemaking. Therefore, this comment is beyond the scope of this rulemaking.
58. Comment: Definition of major stationary source contained in Subparagraph 201-2.1 (b)(21)(ii): 'For hazardous air pollutants other than radionuclides, a stationary source, source, or facility that emits or has the potential to emit, in the aggregate, 10 tpy or more of any hazardous air pollutant as defined in Part 200 of this Title (including any fugitive emissions of such pollutant), 25 tpy or more of any combination of such hazardous air pollutants (including any fugitive emissions of such pollutants), or such lesser quantity as the administrator may establish by rule. For radionuclides the meaning of major stationary sources, major sources, or major facility shall be specified by the administrator by rule. Notwithstanding the preceding sentence, emissions from any oil or gas exploration or oil and gas production well (with its associated equipment) and the emissions from any pipeline compressor station or pump station shall not be aggregated with emissions from other units, whether or not such units are in a contiguous area or under common control, to determine whether such units or stations are major stationary sources, major sources, or major facilities.' (Emphasis added.)
This language is not consistent with EPA's definition of "Building, Structure, Facility, or Installation" in the PSD regulations, 40 CFR section 52.21(b)(6). We do not see any basis for not aggregating units that are contiguous or adjacent, for example, units on the same pad and property. In addition, the language differs from EPA's approach to aggregation as reflected in memos from EPA Regions 5 and 8 stating that aggregation should be determined on a case-by-case basis. Therefore, the blanket aggregation exception for the oil and gas facilities provided by the last sentence above should be removed from Part 201. Commenter 5
Response to Comment 58: The Department has made no changes to the text emphasized above with this rulemaking, and it is therefore beyond the scope of this rulemaking. Further, the Department directs the commenter's attention to Section 112(n)(4)(A) of the Clean Air Act, which includes virtually identical language to that highlighted above.
59. Comment: The potential adverse impact of Section 201-1.15 on business is exacerbated by the proposed narrow definition of "construction" in Section 201-2.1(b)(9). A project may be progressing at substantial expense to the project sponsor without satisfying this extremely narrow definition. For instance, the necessary precursor to interconnection is the reliability impact study, which, alone may require more than 18 months and precedes any "initiation of physicial on-site construction activities". Similarly, a project sponsor may be engaged in engineering or have contracted for construction only to have the Department prematurely terminate the contract by virtue of the proposed rule. Commenter 8
Response to Comment 59: This comment is outside the scope of this rulemaking. The definition of "construction" is not being changed.
List of Commenters
1. East 86th Street Association
2. James Mussgnug, P.E., CHMM
3. GLOBALFOUNDRIES, U.S. Inc.
4. United States Department of Defense
5. United States Environmental Protection Agency, Region 2
6. Environmental Energy Alliance of New York
7. Ilene Miller
8. NRG Energy, Inc.
9. Paul Casowitz
10. Sithe/Independence Power Partners, L.P.
1 http://www.merriam-webster.com/dictionary/transient. Last accessed 10/02/2012. (c) 2012 Merriam-Webster, Inc.
2 Small Business Assistance Program, http://www.dec.ny.gov/chemical/2414.html,
4 Clean Air Act 42 USC Section 112(b)(1), CAS Number 007550-45-0
6 Lewis, J. R, Sax's Dangerous Properties of Industrial Materials, Volume 3, 10th Edition, © 2000 John Wiley and Sons